"The entirety of the case against one defendant constitutes the connecting link."5 But a bill is multifarious, when the charge against one is in no way connected with those against other defendants. When the liabilities of the stockholders of a corporation to pay their subscriptions are several, independent, and unconditional, and they have no common defense depending on the same questions of fact and law, the remedy of the corporation or the trustee in bankruptcy, or its receiver, is an action at law against each of them or a bill against several of them to collect such subscriptions is multifarious. But it was held that 8 a receiver's bill to collect the amount due by subscriptions to stock was not multifarious when filed against several stockholders, who had a common defense depending upon the same question of fact and law; and that a bill filed by a creditor on behalf of himself and others similarly situated, to wind up the affairs of the bank, to determine the amount due him, to ascertain the amounts due to other creditors, to distribute the assets among them, and to enforce the liability of the stockholders, who were made defendants with the bank, was not multifarious.9 Bills were held to be multifarious when filed by receivers against several stockholders to enforce a statutory liability to creditors, 10 or to collect an assessment made in another proceeding, to which Calvert on Parties (2d ed.), 98, quoting Sir John Leach in Turner v. Robinson, 1 Sim. & S. 313; and Lord Cottenham in Attorney General v. Corporation of Poole, 4 M. & Cr. 17, 31; Halsey v. Goddard, 86 Fed. 25; Porter v. Robinson 2 Va. Dec. 183, 22 S. E. 843; Crickard v. Crouch's Adm'rs, 41 W. Va. 503; s. c., 23 S. E. 727; Middleton Sav. Bank v. Bacharach, 46 Conn. 513. But see Washington City Sav. Bank of Thornton, 83 Va. 157; Buffalo v. Town of Pocahontas, 85 Va. 222; Sylvester v. Boyd, 166 Mass. 445; s. c., 44 N. E. 343; Staude v. Keck, 92 Va. 544; S. C., 24 S. E. 227. 6 Wood v. Dummer, 3 Mason, 308; West v. Randall, 2 Mason, 181, 200; Lewarne v. Mexican Int. I. Co., 38 Fed. 620; Seales v. Pheiffer, 77 Ala. 278; Sumter County v. Mitchell, 85 Ala. 313; Van Houten v. Van Winkle, 46 N. J. Eq. 380; National Surety Co. V. Washington Iron Works, 243 Fed. 260; Beveridge v. Crawford Cotton Mills, 257 Fed. 832. 7 Kelly v. Gill, 245 U. S. 116. 8 Wyman v. Bowman, C. C. A., 127 Fed. 257; Clinton Mining & Mineral Co. v. Cochran, C. C. A., 247 Fed. 449; John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596; supra, §§ 81, 83. 9 Richmond v. Irons, 121 U. S. 27, 50, 30 L. ed. 864, 871; Wyman v. Wallace, 201 U. S. 230, 242, 50 L. ed. 738, 741. 10 Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380. A bill is not multifarious as the defendants were not parties.11 regards stockholders, who have a common defense, when filed to collect dividends paid while the corporation was insolvent. 12 Nor a bill by a receiver against a number of bank directors, to recover money lost by the bank through their alleged misconduct.13 Nor in New Jersey a stockholder's bill to recover damages for the negligence of the officers and directors of a bank for a period of time during part of which some of the defendants were not in office. 14 Nor a bill against two depositaries of the funds of an insolvent association, the proceeds of embezzlements by its treas 11 Fidelity Tr. & Safe Dep. Co. v. Archer, C. C. A., 179 Fed. 32. 12 Hayden v. Thompson, C. C. A., 71 Fed. 60; reversing, 67 Fed. 273. 13 Allen v. Luke, 141 Fed. 694. 14 Ackerman v. Halsey, 37 N. J. Eq. 356. Contra, under the N. Y. Code, People v. Eq. L. A. S'y, 124 App. D. (N. Y.) 714. Bills were held to be multifarious which were filed by a stockholder to enforce the liability to the corporation of one defendant for unpaid stock, his joint liability with five others for fraud against the creditors of the corpo ration, and the liability of these five for the fraudulent sale of corporate property with which the first defendant was not connected. Holton v. Wallace, 66 Fed. 409. In Missouri, a bill by a creditor of an insolvent corporation to collect unpaid stock subscriptions and also to recover from one of the subscribers for his conduct as president both in defrauding the corporation and in injuring the individual property of complainant. Montserrat Coal Co. V. Johnson County C. M. Co., 141 Mo. 149; S. C., 42 S. W. 822. By a stockholder who complained of other stockholders and officers for false representations which induced him to buy his stock, and against the corporation for dissolution and an accounting because of the suspension of its business and waste of the corporate funds. Watson V. U. S. Sugar Ref. Co., C. C. A., 68 Fed. 769. In Massachusetts, by a stockholder against a corporation and its trustees praying for a return of money advanced by him to the corporation through the fraud of the individual defendants, which also alleged misappropriation of the corporate funds and prayed the appointment of a receiv er, where there was no allegation that the corporation had no funds to repay the plaintiff, and the receivership was not sought merely as an incident to the principal relief. Davis v. Peabody, 170 Mass. 397; s. c., 49 N. E. 750. It has been held that claims against directors and stockholders to enforce different liabilities cannot be combined. Cambridge Waterworks v. Somerville D. & B. Co., 14 Gray (Mass.), 193; Pipe v. Leonard, 115 Mass. 286; Von Auw v. Chicago T. & T. G. Co., 70 Fed. 939. But they may be united in a suit to enjoin them from taking part in the same fraudulent transaction. Jones v. Missouri-Edison El. Co., C. C. A., 144 Fed. 765. urer, all of which were of the same character and grew out of his manipulation of the deposits, in some of which transactions it was alleged that both of them participated and were jointly liable; when it was further charged, that the illegal matters were so interwoven that an accounting was necessary of all the different accounts of the association in both depositaries, that the defendants knowingly participated with the treasurer in the misappropriation of the funds.15 Nor one by the holder of a bond secured by a lien upon the property of a corporation against both the corporation and its stockholders, at the same time to foreclose his lien and to compel the stockholders to pay so much of the balance of their subscriptions to the stock of the corporation as will suffice for the payment of the deficiency after the foreclosure sale.16 Nor one by a mortgagee of water works to foreclose the mortgage, and to compel the city which had bought the property to pay hydrant rents to the plaintiff in pursuance of the contract granting the franchise.17 Nor a bill by a city bondholder for an accounting by his obligor and by the county, to whom assessments, upon which the complainant has a lien, have been paid in part.18 But bills were held to be multifarious when filed: to foreclose a mortgage on a gas plant, covering all moneys "furnished and hereafter paid" by a city for gas-light, which joined the city as a co-defendant with the mortgagor, and prayed for a judgment against the city for what it owed the mortgagor for light.19 To foreclose a mortgage by a corporation, and to recover dividends from stockholders paid out of the income of the mortgaged property.20 Joining prayer for the recovery of bonds wrongfully re 15 Fidelity & Deposit Co. of Maryland v. Fidelity Trust Co., 143 Fed. 152. 16 Marine & R. P. M. & Mfg. Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034. 17 Centerville v. Fidelity Tr. & G'y Co., C. C. A., 118 Fed. 322. In Massachusetts a stockholder was allowed to file a bill against a corporation and an officer thereof to recover corporate funds misappro priated by the officer and to apply the same to a dividend due the complainant. Dunphy V. Traveller Newspaper Ass'n, 146 Mass. 495. 18 Hayden v. Douglas County, Wisconsin, C. C. A., 170 Fed. 24. 19 International Tr. Co. v. Cartersville I. G. & W. Co., 63 Fed. 341, 346. See infra, § 146. 20 New Hampshire Sav. Bank v. Ritchey, C. C. A., 121 Fed. 956. tained by one defendant, with a prayer for relief against another to apply assets in payment of the same.21 A bondholder's bill to enforce a lien upon a fund in the possession of a corporation and to charge the directors individually for payments made to general creditors.22 26 A bill was held multifarious which sought both to foreclose a mortgage and to restrain another defendant from asserting a claim of title adverse to both mortgagee and mortgagor, 23 when such adverse title accrued prior to the mortgage; 24 and even, it has been held in New York, when it subsequently arose; 25 and a bill to foreclose two mortgages by the same mortgagor upon separate lots owned by different persons; or to foreclose a mortgage and recover damages from a third person for fraud in inducing the loan thereby secured.27 But a party claiming a lien upon the property by a judgment against the mortgagor prior to the mortgage, the validity of which lien is contested by the mortgagee, may be joined as a party defendant in a foreclosure suit.28 A bill may be filed to establish a lien, with a prayer for the enforcement of the individual liability of some of the defendants, whose indebtedness the lien secures.29 A bill against different lienholders on the same property to have their bills settled and adjusted is not multifarious.30 Nor a bill to set aside a lease of a mine and to obtain an injunction, damages, and an accounting against persons who under authority from the lessee have taken. all from the same.31 A bill is multifarious which seeks to obtain a transfer of land from one defendant, and to restrain another 21 Sawyer v. Atchinson, T. & S. F. R. Co., C. C. A., 129 Fed. 100. 22 Cass v Realty Securities Co., 148 App. Div. (N. Y.) 96. 23 Dial v. Reynolds, 96 U. S. 340, 24 L. ed. 644. But see California S. D. & I. Co. v. Cheney El. L. T. & P. Co., 56 Fed. 257; Mendenhall v. Hall, 134 U. S. 559, 568, 33 L. ed. 1012, 1015. 24 Ibid. 25 Erie County Sav. Bank V. Schuster, 187 N. Y. 111. 26 Eastern B. L. Ass'n v. Denton, 65 Fed. 569. from asserting a conflicting claim to the same.32 So is a bill by an executor to settle the conflicting controversies between himself, the heirs of his testatrix, the heirs of her husband both of whom dispute bequests under her will, and one claiming to be a creditor of her estate.33 A bill is not multifarious, which prays an accounting by one defendant under contracts made between him and the complainant, and joins another defendant, who is charged to be a secret partner with the former in these transactions, and who has received part of the profits of the same 34 or prays an accounting against a trustee and seeks to set aside a release of a claim of the estate given by him to a third person joined as a defendant; 35 but a bill was held to be multifarious which joined, with 32 Copen v. Flesher, 1 Bond, 440. 33 Haines v. Carpenter, 1 Woods, 262. The following bills have also been held to be multifarious: A bill by a creditor of an estate to enjoin the sale, to pay debts, of firm lands purchased by him from the heirs, and to recover from the administrator and his sureties the amount of his debt. Banks v. Speers, 103 Ala. 436. A petition against the executors of the peti tioners' deceased father and against three successive guardians of the petitioners themselves, praying an account by the defendants of their respective trusts and waiving discovery. Cornwell Mfg. Co. v. Swift, 89 Mich. 503; s. c., 50 N. W. 1001. A bill to enforce a claim for devastavit against the personal representatives of some of the sureties upon an administrator's bond, and for a settlement of the estate, which also sought to enforce against the representatives of the other sureties, in their individual capacities, the personal penalty for failure to give the notice to creditors required by law. Page v. Bartlett, 101 Ala. 193. See also Cocks v. Varney, 42 N. J. Eq. 514; Henninger v. Heald, 51 N. J. Eq. 74; Bullock v. Knox, 96 Ala. 195; Dickerson v. Winslow, 97 Ala. 491; Smith v. Smith, 102 Ala. 516; Bolles v. Bolles, 44 N. J. Eq. 385, 14 Atl. 593; Wells v. S. & P. Guano Co., 89 Va. 708; Torrent v. Hamilton, 95 Mich. 159; Ashley v. City of Little Rock, 56 Ark, 391. 34 McMullen Lumber Co. V. Strother, C. C. A., 136 Fed. 295. 35 Pulver v. Leonard, 176 Fed. 586, 590. See Payne v. Hook, 7 Wall. 425, 433, 19 L. ed. 260. But bills were held not multifarious against an administrator de bonis non, the administrator of his predecessor and the holder of the only claim against the estate, for the purpose of completing the adminis tration and disallowing the claim (Deans v. Wilcoxon, 25 Fla. 980); by heirs against executors under a will, the probate of which had been revoked, and those who had bought property of the state from them with notice of the invalidity of the will (Gaines v. Chew, 2 How. 619, 11 L. ed. 402); and by a surety upon an official bond against the principal, the other sureties and purchasers with notice of property upon which the bond gave a lien. |